Appellate Division Cases
(Civil)
PARTIES
Bangladesh Bar Council…………………………….Appellant.
-Vs-
Mr. Khawja Abdul Gani and another ……………….Respondents.
JUSTICE
A.T.M. Afzal C J
Mustafa Kamal J
Latifur Rahman J
Mohammad Abdur Rouf J
Bimalendu Bikash Roy Chowdhury J
JUDGEMENT DATE: 20th November 1997
Legal Practitioners and Bar Council Act, 1965
Bangladesh Bar Council Debarring respondent Advocate from practising the profession of law before any court for a period of five years
On perusal of the impugned judgment we have not found any material therein to
come to the conclusion that the said legal charge was “disproportionate” except that
the amount was a big amount. Complainant was required to produce material evidence so that on the basis thereof a conclusion could have been reached towards either way. In the absence of such evidence the finding of the Tribunal must be held to be based on mere surmises and conjectured ………………….(11)
As regards the second complaint it was found that respondent No.l had violated
clause 4 of Chapter II (Conduct with regard to clients) of canons of professional
conduct and etiquette but considering the fact that no harm was caused to the complainant and that the other two complaints could not be sustained it was found that the punishment awarded by the Tribunal was too severe………………..(13)
Conduct and etiquette framed under legal Practitioners and Bar Council Act, 1965 it appears that there is no prescribed fees of the lawyers. It has only been said that in accepting legal fees some considerations are to be made by the advocates themselves with regard to the time, labour and intricacies of the case. These instructions are mere guidelines and it has no binding force. Hence,……….. (15)
CIVIL APPEAL NO.6 OF 1996. (From the Judgment and order dated 27.11.94
passed by the High Court Division in Appeal From Original Order No.80 of 1994)
A.Y. Moshiuzzaman, Advocate, instructed by Sharifuddin Chaklader, Advocate-On-Record………………..For the Appellant
A.R. Yousuf, Senior Advocate instructed by M.Nawab Ali, Advocate-On-Record…………. For the Respondent No.l
Respondent No.2………………… Not represented.
JUDGMENT
1. Latifur Rahman J :- This appeal by leave at the instance of the Bangladesh Bar Council is against the judgment and order dated 27.11.94 passed by a Division Bench of the High Court Division in First Miscellaneous Case No.80 of 1994 allowing the appeal in part and substituting an order of reprimand in place of an order made by tribunal No.l constituted under Bangladesh Bar Council debarring respondent No.l Mr.Khawja Abdul Gani, Advocate from practising the profession of law before any court for a period of five years for gross professional and other misconduct.
2. Mrs. Rowshan Ara Zabin respondent No.2 filed a complaint against respondent No.l
Advocate before the Bangladesh Bar Council alleging, inter alia, that her husband late Mr. Neamatullah gifted her Tk.9.00 lacs deposited in F.D.R. with Agrani Bank, New Market Branch, Dhaka and 43 decimals of land at Mouza Senp’ara parbata, Dhaka; that after the death of her husband on 13.8.84 her husband’s younger brother Obaidullah Humayun Kabir tried to evict her with her two minor daughters from her husband’s house at 6. Hare Street, Dhaka with a view to grab the house; that at this stage respondent No.l Mr. Khawja Abdul Gani who is also her cousin (Fufata Bhai) unsolicitingly came and offered to help her; that she went to Agrani Bank with respondent No.l for withdrawing the money but the bank authority asked them to obtain a decree establishing her right to the money following which T.S.248 of 1985 was filed thorough respondent No.l for declaration of her title in the Money and the Senpara Parbata Land; that the said suit was decreed in 1986; that after the decree she withdrew Tk. 11,00,000/00 in two instalments from Agrani Bank for the F.D.R. for Tk.7,00,000/-; that out of this amount she deposited Tk.2,00,000/- with that Agrani Bank in the name of her two minor daughters; that respondent No.l took from her Tk.2,38,000/- as his legal fees in connection with the aforesaid suit; that respondent No.l induced her to pay Tk.1.00 lac to the Imam of
Nawab Bari Mosque on the undertaking that Imam Sahib would pay her Tk.20,000/- per
year as profit but no profit was ever paid and the principal was recovered after six years
after much persuasion; that respondent No.l also induced her to pay to respondent No.l
Tk.2,00,000/- for investment in his jute business promising to pay good profit but did not
return the principal not to speak of profit; that respondent No.l also induced her to buy a
house at Central Road, Dhaka at a price of Tk.3,60,000/- assuring that the house was a
clean one, but the complainant had to face litigation over the same and the purchase proved to be a bad bargain; that respondent No. 1 then came to her Wari residence and gave out that he would recover the valuable properties of her father-in-law at Mirpur and on that plea obtained the signature of the complainant of blank stamp papers and vokalatnama; that a few days after this a court peon came and served upon the complainant a summon; that the said court peon warned her to be careful about respondent No.l, that after this respondent No.l came to her and upon hearing of service of summons by court peon demanded the same but the complainant refused at which
respondent no.l got furious; that after this she went to Advocate Mr.S.D.Goswami who upon examining the summons told her that the son of respondent No.l has filed T.S.No.126 of 1989 for partition on the plea that she had gifted him 14 decimals of Senpara parbata land; that she did not make any such gift and accordingly filed T.S.427 of 1989 for cancellation of the said forged Hiba Deed; that thereafter respondent No.l came to the complainant and expressing regrets obtained her signature on blank papers for filing sole-nama in T.S.427 of 1989 relinquishing their claim in Senpara Parabata land upon the assurance that the solenama will be filed thorough Advocate Mr. Goswami; that respondent No.l, however, fraudulently through a new Advocate whom the complainant did never engage, filed a so-called solenama admitting gift of the disputed land in favour of the son of respondent No.l; that the complainant then filed an application for setting aside the solenama and the same was set aside on contest; that in T.S.126 of 1989 respondent No.l some times filed hajira/petition on behalf of his son and some times for the complainant who are respectively plaintiff and defendant and their interests are conflicting and thereby respondent No.l committed gross professional misconduct;
that the complainant can neither read nor write in Bengali and taking advantage of her
dependence and helplessness respondent No.l induced her to hand over all her valuable
deeds and documents to him and in flagrant violation of her trust, illegally converted some of those deeds and documents against her interest causing her immense loss and sufferings and accordingly, she prayed for appropriate punishment.
3. Respondent No.l contested the case by filing a written statement and contended, inter
alia, that he acted bonafide in defending the interest of the complainant; that he never took undue advantage in any matter, rather did everything possible to protect and preserve her interest in all possible ways; that the case is false and fabricated.
4. Before the tribunal the complainant-respondent No.2 examined two witnesses including herself in support of her case and exhibited various documents. Respondent No.l did not examine any witness.
5. Tribunal No.l of the Bangladesh Bar Council which heard the matter, was pleased
to find respondent No. 1 guilty of the charge of gross professional misconduct beyond all reasonable doubts but took a lenient view in consideration of the old age and ailing health
debarred respondent No. 1 from practising for 5 years before any court in Bangladesh.
6. In the first appeal, the conviction was upheld but the learned judges thought that the
punishment being too severe only substituted it by an order of reprimand in place of debarring from practising the said advocate for five years.
7. Leave was granted to consider whether the High Court Division was correct in passing an order of reprimand when there was no rebuttal evidence adduced by Advocate respondent No.J against the evidence of complainant and thus her evidence having remained intact it was wholly unwarranted to interfere either with the finding made or sentence imposed by the tribunal. Leave was also granted to consider whether the learned Judges acted correctly in reducing the sentence when the punishment was awarded by a tribunal comprised of the fellow advocates and the Bar Council as the highest organ of the practising lawyers is to maintain high professional integrity and discipline of its members and whether this aspect was lost sight of by the learned Judges of the High Court Division.
8. Mr.A.Y. Moshiuzzaman, learned Advocate appearing for the appellant Bangladesh Bar
Council submits that the learned Judges acted wrongly in passing an order of reprimand in place of debarring respondent No.l for practising for five years and the same has caused a great miscarriage of justice.
9. Mr. A. R.Yusuf, learned Advocate appearing on behalf of respondent No.l-advocate
submits that the complainant and respondent No.l are admittedly first cousins and the kind of service that the advocate was rendering to the complainant is indicative of the fact that he was rendering service not only as a lawyer but also helping his cousin and both the parties having peacefully resolved the differences, punishment of reprimand is adequate in the facts of the present case.
10. The Tribunal found the appellant guilty of all the three complaints, namely, (1) Legal
charges of Tk.2,38,000/- is disproportionate in a simple legal proceeding; (2) Exhibits 3,
3(1), 3(2) and 4 show that respondent No.l filed hajira and petition in T.S. Case No. 126
of 1980 some times on behalf of the plaintiff who is his son and sometimes on behalf of
defendant who is the complainant. Thus, respondent No.l represented conflicting interests
in the same suit and (3) The deed of gift also shows that respondent No.l has evil design to grab the property of the complainant by fraudulent means.
11. From the judgment it appears that the learned judges of the High Court Division
found as regards realisation of Tk.2,38,000/from thecomplainant as ‘legal charge’ (which
is admitted) as follows:” On perusal of the impugned judgment we have not found any material therein to come to the conclusion that the said legal charge was “disproportionate” except that the amount was a big amount. Complainant was required to produce material evidence so that on the basis thereof a conclusion could have been
reached towards either way. In the absence of such evidence the finding of the Tribunal must be held to be based on mere surmises and conjectured.”
12. The High Court Division found so far as the third complaint is concerned that the
Tribunal ought not to have given any finding regarding the deed of gift in view of the fact
that the matter is subjudice in Title Appeal No.57 of 1993 preferred by the plaintiff in the
Court of the District Judge.
13. As regards the second complaint it was found that respondent No.l had violated
clause 4 of Chapter II (Conduct with regard to clients) of canons of professional conduct and etiquette but considering the fact that no harm was caused to the complainant and that the other two complaints could not be sustained it was found that the punishment awarded by the Tribunal was too severe.
14. The learned Judges of the High Court Division found that Tk.2,38,000/- was taken
as legal charges not as legal fees only and the amount was a big amount and the same cannot be said to be disproportionate.
15. From a reference to Bar Council canons of professional conduct and etiquette framed
under legal Practitioners and Bar Council Act, 1965 it appears that there is no prescribed fees of the lawyers. It has only been said that in accepting legal fees some considerations are to be made by the advocates themselves with regard to the time, labour and intricacies of the case. These instructions are mere guidelines and it has no binding force. Hence, the
learned Judges of the High Court Division rightly held that the amount charged as legal
fees is not disproportionate as there is no fixed standard of fees of advocates.
16. The learned Judges of the High Court Division rightly found that respondent No.l
should not have filed vokalatnama on behalf of his son who is a defendant and also on
behalf of the plaintiff in the same suit. This is indeed a professional misconduct as clause (4) of Chapter II (Conduct with regard to clients) clearly says that an advocate shall not represent conflicting interests. As in fact no harm was done to respondent No.2 the substitution of reprimand is adequate in the facts of the present case. Respondent No.l was acting not only as an advocate in the present case but also working as a close relation of respondent No.2 and that is why he went to the office of the Bank at- the time of withdrawal of the F.D.R. and also at the time of depositing the amount in Bank. In normal course of professional work no advocate will accompany a client to do these types of works. As professional duty the lawyer will only represent the client in court but in this case respondent No. 1 was helping respondent No.2 as a cousin as well. Further, the matter having been compromised between the parties who are close relations we also think that the punishment of reprimand is sufficient in the facts and circumstances
of the present case, although an offence of this nature is not compoundable.
17. Consequently, the appeal is dismissed without any order as to costs.
Ed.
Source: IV ADC (2007), 20